CRM 101 - Chapter 2 The criminal law and its process

Substantive criminal law

Defines crimes and their punishments (e.g., Criminal Code of Canada provisions).

Procedural criminal law

Sets out the rules and processes for enforcing substantive law (e.g., police powers, trial procedures, evidence rules).

Common law

Law developed through court decisions (precedent), originating in England and adopted in Canada unless overridden by statute.

Statutory law

Law created by legislative bodies, such as Parliament or provincial legislatures.

Criminal Code of Canada

The main source of substantive criminal law in Canada, defining criminal acts and their punishments.

Charter of Rights and Freedoms

Part of Canada’s Constitution; protects individual rights and freedoms during criminal investigations and trials.

Actus reus

The physical act or conduct that constitutes a criminal offense (“guilty act”).

Mens rea

The mental element or intent behind a criminal act (“guilty mind”).

Strict liability offenses

Offenses where mens rea is not required, but the accused can avoid liability by showing due diligence (common in regulatory law).

Absolute liability offenses

Offenses with no mens rea requirement and no defense; if the act is committed, guilt is automatic.

Mala in se

Acts that are inherently wrong or evil (e.g., murder, rape).

Mala prohibita

Acts that are wrong because they are prohibited by law (e.g., drug possession, traffic offenses).

What are the two main purposes of criminal law?

1) To define socially harmful conduct and set punishments; 2) To maintain order and protect society.

How does criminal law differ from civil law?

Criminal law punishes offenses against society, while civil law resolves disputes between individuals.

What are the functions of criminal law?

Social control, discouraging revenge, expressing public morality, deterring crime, punishing wrongdoers, and maintaining order

What is the difference between substantive and procedural law?

Substantive defines crimes; procedural governs enforcement and legal processes

Why is the Charter important in criminal proceedings?

It limits state power and protects individual rights during arrests, searches, trials, and sentencing.

What role do courts play in shaping criminal law?

Through precedent, interpretation of statutes, and constitutional rulings, courts help evolve legal principles.

What is the principle of legality?

People can only be punished for conduct that was criminalized by law before the act was committed.

What is precedent (stare decisis)?

The principle that lower courts must follow legal decisions of higher courts in similar cases.

What is a “reasonable person” standard?

A legal test using the perspective of a hypothetical reasonable person to assess actions or negligence.

What is a defense in criminal law?

A legal argument raised by the accused to avoid conviction (e.g., self-defense, duress, insanity).

What are some common defenses in Canadian law?

Self-defense, necessity, duress, consent, intoxication (limited), automatism, mental disorder, entrapment.

What are the key stages of the criminal justice process in Canada?

Investigation → Arrest → Laying of charges → First appearance → Bail → Preliminary inquiry (for serious cases) → Trial → Sentencing → Appeal.

Who is responsible for prosecuting criminal cases in Canada?

Crown prosecutors (Crown counsel), representing the state.

What is the role of the police in the criminal process?

Investigate, collect evidence, arrest suspects, and lay charges.

What is a preliminary inquiry?

A hearing in serious cases to determine if there’s enough evidence to proceed to trial.

What is plea bargaining?

Negotiations between Crown and defense to resolve the case without a trial, often involving reduced charges or sentences.

What legal tradition does Canada follow?

Primarily common law, with Quebec using civil law for private matters.

What level of government has jurisdiction over criminal law?

Federal government (Parliament) enacts criminal law; provinces handle administration (e.g., policing, prosecutions).

Federal government (Parliament) enacts criminal law; provinces handle administration (e.g., policing, prosecutions).

Indictable = more serious (e.g., murder); Summary = less serious (e.g., minor theft), with shorter limitation periods and lighter penalties.

What is a hybrid offense?

An offense that can be tried either summarily or by indictment, at the Crown’s discretion.

Why is mens rea important in criminal law?

It distinguishes between accidental acts and intentional wrongdoing, ensuring moral culpability.

How does the Charter influence police behaviour?

It sets limits on search, seizure, detention, and questioning — violations can lead to exclusion of evidence.

Why is it important to distinguish between mala in se and mala prohibita?

It reveals how law reflects moral judgments vs. regulatory decisions, influencing enforcement and public perception.

Lex talions

punishment based on physical retaliation, now known as eye for an eye, formally called retribution

Werglid

fine or monetary compensation

Code of Hammurabi 

First written criminal code in 2000 BCE

Oath helpers

Character witnesses

Inchoate crimes

Is defined as a crime in section 24 of the Criminal Code of Canada (CCC).

Tort law

The law of personal law and damage (Negligence, liable, slander). Individual victim seeks compensation for personal harm caused by another